Central Administrative Tribunal - Delhi
Constable Brijbeer Singh vs Govt. Of Nct Of Delhi on 3 June, 2011
Central Administrative Tribunal
Principal Bench
OA No.1027/2006
New Delhi, this the 3rd day of June, 2011
Honble Dr. Ramesh Chandra Panda, Member (A)
Honble Dr. Dharam Paul Sharma, Member (J)
Constable Brijbeer Singh
(PIS No.28890335)
R/o VPO Bamnauli,
Dist. Baghpat, UP. . Applicant.
(By Advocate : Shri Anil Singal)
Versus
1. Govt. of NCT of Delhi
Through its Chief Secretary
Delhi Secretariat
I.P. Estate,
New Delhi.
2. Jt. Commissioner of Police
(New Delhi Range), PHQ,
IP Estate,
New Delhi.
3. Addl. DCP (North East Delhi)
Through Commissioner of Police
PHQ, IP Estate,
New Delhi. Respondents.
(By Advocate : Shri Chandramani Bhardwaj for
Mrs. Rashmi Chopra)
: O R D E R :
Dr. Ramesh Chandra Panda, Member (A) :
The Applicant in this Original Application has sought intervention of the Tribunal to quash and set aside (i) the order dated 4.1.2005 (Annexure-A1) in which the Departmental Enquiry was ordered; (ii) the Findings of the Inquiry Officer (IO) vide his report dated 09.03.2005 (Annexure-A2) in which the charge was held as proved; (iii) the order dated 14.06.2005 (Annexure-A3) by which the Disciplinary Authority imposed the penalty of forfeiture of three years of approved service permanently entailing proportionate reduction in his pay from `4220 to `3965; and (iv) the Appellate Authoritys order dated 23.02.2006 (Annexure-A4) in which Applicants appeal was rejected. The OA was dismissed by the Tribunal on 6.3.2007 and subsequently the RA No.80/2007 in the said OA moved by the Applicant was allowed on 3.09.2007 and the earlier order dated 6.3.2007 was recalled. After further hearing of the parties, the OA was dismissed by the order dated 29.07.2009. The Applicant, feeling aggrieved approached the Honble High Court of Delhi in WP(C) No.6230/2010 which was decided on 15.09.2010 by setting aside this Tribunal order dated 29.07.2009 and restoring the OA for fresh adjudication. Pursuant to the said judgment of the Honble High Court of Delhi passed on 15.09.2010, we are adjudicating this OA. Our scope has been already marked in the said judgment which is mainly on the basis of the direction given therein which reads as follows:-
3. On 4.1.2005 a departmental enquiry was instituted against the petitioner on the summary of allegations that on 10.05.1998 at about 8:30 PM a Martu van driven by one Charanjit Singh struck Const. Rohtash Singh which was witnessed by the petitioner. FIR on the offence punishable under Section 279/337/304-A IPC PS Tuglak Road was registered. That the petitioner resiled from his statement recorded during investigation under Section 161 Cr.P.C. inasmuch as he did not identify the accused who earned an acquittal, was the substance of the allegation.
4. Holding petitioner guilty of deliberately withholding the identification of the accused in Court and thereby benefiting him with an acquittal, the Inquiry Officer returned a finding on 9.3.2005 holding that the charge was proved.
5. Disciplinary Authority imposed the penalty of forfeiture of 3 years approved service permanently vide order dated 14.6.2005. The appeal was rejected by the Appellate Authority on 23.2.2006.
6. Petitioner challenged the penalty levied by and under OA NO.1027/2006 which was dismissed vide order dated 6.3.2007.
7. In paragraph 4 of the order, 4 contentions urged on behalf of the petitioner have been noted. But, none was dealt with.
8. The petitioner filed a review application registered as RA No.80/2007 in which it was pointed out that the 4 contentions urged by the petitioner and noted in paragraph 4 of the judgment and order dated 6.3.2007 had not been dealt with by the Bench. Accepting the review application, the order dated 6.3.2007 was recalled.
9. Obviously, the object was to rehear the matter and decide with reference to the 4 contentions urged by the petitioner and as noted in paragraph 4 of the order dated 6.3.2007.
10. Vide impugned order dated 29.7.2009 OA No.1027/2008 has been dismissed.
11. To our dismay we note that the order dated 29.7.2009 is one worse than its predecessor order. None of the contentions urged have been noted. Obviously, none have been dealt with. At least the order dated 6.3.2007 noted the contentions urged. The taint with the order was of note dealing with the same. The taint in the order dated 29.07.2009 is of not even noting the contentions urged and as a result, not dealing with the same.
12. Be that as it may, the fact of the matter remains that the 4 contentions urged by the petitioner and as noted in paragraph 4 of the order dated 6.3.2007 passed by the Tribunal remained un-dealt with. Under the circumstances we dispose of the writ petition setting aside the impugned order dated 29.7.2009. We restore OA No.1027/2006 for fresh adjudication. We issue a direction to the Tribunal that while deciding the matter afresh, the 4 contentions urged by the petitioner and as reflected in paragraph 4 of the order dated 6.3.2007 would be dealt with at seriatim. The fresh decision would list each argument and thereafter deal with the same and dispose of the contentions with reasons.
2. We are not narrating the factual matrix of the case as the same has been brought out briefly in the above order of the Honble High Court.
3. We heard Shri Anil Singal, learned Counsel for the Applicant and Shri Chandermani Bhardwaj appearing on behalf of Ms. Rashmi Chopra, learned Counsel for the Respondents. With their assistance, we perused the pleadings and the judgments relied on by them as well.
4. As the direction of the Honble High Court to the Tribunal is to decide the matter afresh mainly on the 4 contentions urged by the Applicant which have been reflected in Paragraph 4 of this Tribunal order dated 6.3.2007, we take below the extract of the said paragraph:
4. It has been argued that the applicant has been held responsible for not identifying the accused as per his earlier statement under Section 161 Cr.P.C. during the trial in the learned court of Metropolitan Magistrate, New Delhi even though the court in its judgment dated 15.3.2003 did not make any adverse comment against him. Therefore, such departmental action against him cannot be supported in terms of either Section 344 or 340 Cr.P.C. Even rule 13 of the Delhi Police (Punishment & Appeal) Rules, 1980 is not attracted since no strictures were passed by the court against the applicant. The enquiry officer has exceeded his brief by acting as a prosecutor with a biased attitude to elicit answers to leading questions by cross examining the witnesses without giving opportunity to the applicant to re-cross examine them thereafter. The findings of the enquiry officer are based on no evidence and the disciplinary authority has not considered the representation/defence of the applicant. Even the appellate authority has not applied it s mind and mechanically endorsed the reasoning given by the disciplinary authority in a non-speaking and cryptic order. The allegations against the applicant do not attribute any motive to him because of which it was incorrect for the disciplinary authority to hold that if he failed to identify the accused in the court, it means that he did it intentionally.
5. The deconstruction of the above paragraph would disclose the following contentions/grounds raised by the Applicant in his support which we would deal in seriatum.
1. The Applicant has been held responsible for not identifying the accursed as per his earlier statement under Section 161 Cr.P.C. during the trail in the learned Court of Metropolitan Magistrate, New Delhi, even though the Court in its judgment dated 15.3.2003 did not make any adverse comment against him. Therefore, such departmental action against him cannot be supported in terms of either Section 344 or 340 Cr.P.C.
2 Rule 13 of the Delhi Police (Punishment & Appeal) Rules, 1980 is not attracted since no strictures were passed by the court against the applicant.
3 The enquiry officer has exceeded his brief by acting as a prosecutor with a biased attitude to elicit answers to leading questions by cross examining the witnesses without giving opportunity to the applicant to re-cross examine them thereafter.
4. The findings of the enquiry officer are based on no evidence and the disciplinary authority has not considered the representation/defence of the applicant.
5. Even the appellate authority has not applied its mind and mechanically endorsed the reasoning given by the disciplinary authority in a non-speaking and cryptic order.
6 The allegations against the applicant do not attribute any motive to him because of which it was incorrect for the disciplinary authority to hold that if he failed to identify the accused in the court, it means that he did it intentionally.
6. Each of these deconstructed points/grounds are dealt in the following paragraphs.
7.1 Contention-1 :- The Applicant has been held responsible for not identifying the accused as per his earlier statement under Section 161 Cr.P.C. during the trial in the learned court of Metropolitan Magistrate, New Delhi even though the court in its judgment dated 15.3.2003 did not make any adverse comment against him. Therefore, such departmental action against him cannot be supported in terms of either Section 344 or 340 Cr.P.C.
7.2 In support of his above contention, Shri Singal highlighted the background of the case to say that on 10.05.1998 the Applicant saw a road accident and Section 161 CrPC Statement of the Applicant was recorded by Police but the Applicant did not identify the accused in the Learned Metropolitan Magistrate (MM) Court and the accused was acquitted vide judgment dated 15.03.2003. On the basis of the said acquittal, a DE was initiated against the Applicant on the allegation that he did not support his earlier Statement recorded under Section 161 CrPC during trial and did not identify the accused. His submission is that as there is no adverse remark by the learned MM, the departmental action against him cannot be sustained in terms of Sec 340/344 CrPC. Thus, he terms the DE ab initio as illegal.
7.3 It is submitted by the Counsel for the Respondents that the Applicant was the only material witness in the criminal case who was the eye witness of the incident where one of Police personnel died but the Applicant did not support his statement recorded under Section 161 CrPC and did not identify the accused in the criminal case, as a result the prosecution failed to prove the allegation levelled against the accused. His contention is that the Applicant being Police Personnel and well trained to recognize and identify the accused who his colleague resulting in death, did not identify the accused in the criminal case. The Applicant did not state any reason for not adhering to his earlier statement. It is further submitted that the contention of the Applicant that the learned MM has not made any adverse comment against the Applicant has no bearing to the initiation of DE and consequently infliction of punishment.
7.4 There are two limbs of the above contention viz (i) there was no adverse comment against the Applicant in the orders of learned MM, and (ii) the DE cannot be sustained in terms of the Section 340 and 344 of CrPC. We may take up the item (i) now. Under Section 161 of Cr.P.C., a Police Officer making an investigation can examine the person acquainted with the facts of the case and reduce the statement made by such person into writing. Such statement so recorded under Section 161 has such value as the statement can be used in a judicial proceeding. Variations in the statement so recorded under Section 161 Cr. PC and those recorded during the trial may take place. Under Section 162 of Cr.P.C. envisages that no statement so made to the Police under Section 161 should be signed by the person who makes the statement. It is well settled that provisions of the Evidence Act are not applicable in a departmental proceeding [Commissioner of Police Versus Narender Singh (S.C.) reported in 2006-3-SLR-31]. Further, in a departmental enquiry strict rules of evidence is not applicable and materials which are logically probative for a prudent mind is permissible [State of Haryana and Another Versus Rattan Singh reported in 1977(1) SLR-750]. In the present case it is noticed that in the criminal case the prosecution failed and the accused was acquitted. Non-identification of the accused has been one of the important factors for acquittal. This is a typical case where the Applicants colleague died due to the incident where the accused was involved. The Applicants Section 161 CrPC Statement was recorded in order to identify the accused. By straying away from his earlier statement in the trial has undoubtedly helped the acquittal of the accused. We may reproduce below the relevant part of the order dated 15.03.2003 (Annexure-A5) of the learned MM in the FIR No.116/98 in PS T. Road in the case of State versus Charanjeet Singh:-
6. In this case PW1 Ct. Brijbir Singh is the material witness only. He has not supported the case of the prosecution. He has stated that the van was being driven by one Sardarji but he was not present in court. He also deposed that on 10.5.98 at about 8.30 P.M. he was moving on the main gate of the line and in the meanwhile, maruti van was coming from the side of Tughlak Road and hit constable Rohtash when he was started to cross the road as a result of which he fell down on the road. This witness was cross examined by Ld. APP in which he stated that vehicle maruti van involved in the accident was being driven rashly and negligently by the driver. He also stated that he cannot say whether the accused was driving the vehicle or not.
7. In this case the first question/which is to be decided is that whether the accused was driving the offending maruti van at the time of accident? In this regard, it is important to note that the witness PW1 Ct. Brijbir, who is the only material witness of the accident, has not stated that the accused was driving the offending maruti van at the time of accident. He adopted in his cross examination by Ld. APP that he cannot say whether the accused was driving the offending maruti van at the time of accident or not. It is also the case of the accused that he was not driving the vehicle at the time of the accident or not accident took place. Therefore, in my view prosecution has failed to prove on record that it was the accused, who was driving the offending maruti van at the time of accident. Therefore, in my view, from the evidence on record, the prosecution has also proved on record that it was the accused, who was driving the offending maruti van in rash and negligent manner and accused death of constable Rohtash Singh. Therefore, prosecution has failed to prove its case against the accused for the offence punishable U/s 279/304-A IPC, beyond reasonable doubt. Accordingly, the accused is acquitted for the offence punishable U/s 279/304-A IPC. The bail bond of the accused is cancelled, surely discharged. File be consigned to record room. The learned Metropolitan Magistrate has not given any adverse comment or stricture against the Applicant in the above order, nor any order under Section 340 and 344 of CrPC. But we find that Applicant is not ordinary witness. He is a Police Personnel of Delhi Police who is acquainted in the investigation procedure of the criminal cases. The Respondents are duty bound to proceed against him as he was the material and star witness of the case. Reference to Section 161 CrPC statement of the Applicant has been the basis of the DE and penalty imposed on him. PW-2 who recorded the 161 CrPC Statement of the Applicant has supported the same in his evidence before EO. We quote from PW-2s statement in the EOs report which reads as follows :-
Then Ct. Brijbeer went after leaving driver of Maruti Van Sh. Charanjeet Singh and Maruti Van at the Police Station. He recorded the statement of Ct. Brijbeer in U/s 161 CrPC which is marked as Ex.PW2/A. This clearly shows that the evidence has come on record through the PW-2 about the Section 161 CrPC statement in the DE. Hence the contention advanced by the Applicant that his Section 161 CrPC statement is not admissible in the DE and disciplinary case is not acceptable. We conclude that the said statement of the Applicant recorded by the PW-2 under Section 161 CrPC and exhibited in the DE is admissible in the departmental proceeding against the Applicant.
Next, we may advert to the Item (ii) of the contention. It is correct stand of the Applicants Counsel that the present departmental proceeding is not sustainable under the Provisions of Section 340 and 344 of CrPC. Section 340 and 344 have not been invoked by the Respondents. It is noted that the DE was not initiated after getting the orders of the learned Metropolitan Magistrate under Section 340 CrPC and there was no application for that purpose from the Respondents. Moreover, Section 344 of CrPC prescribes summary procedure to be adopted for trial for giving false evidence. The learned MM has not expressed any opinion to the effect that the Applicant appearing as a witness in the criminal trial had knowingly or willfully given false evidence. The Respondents point is that Applicant did not adhere to the Section 161 CrPC statement recorded earlier and did not identify the accused in the trial as a result the accused was acquitted. But there is no mention in the order of the learned MM about the Applicant giving false evidence willfully and intentionally. Thus, we are of the opinion that though the Applicants Counsel has advanced such a contention that DE is not sustainable under Section 340 & 344 of CrPC, it is a fact that DE has not been initiated under Section 340 & 344 CrPC.
8. Contention-2 :- Even rule 13 of the Delhi Police (Punishment & Appeal) Rules, 1980 is not attracted since no strictures were passed by the court against the applicant.
8.1 Shri Singal, drawing our attention to the judgment dated 15.3.2003 of the learned Metropolitan Magistrate and Rule 13 of the Delhi Police (Punishment and Appeal) Rules 1980, submits that even the initiation of the Departmental Enquiry against the Applicant on his alleged conduct in a court of law in the absence of any stricture/adverse comments is not justified. He, therefore, submitted that the disciplinary action could not have been initiated under Rule 13 of the said Rules.
8.2 The Counsel for Respondents contended that the DE was not initiated by invoking the Rule 13. On the other hand, the charge was framed against him on the account of his gross negligence, carelessness and dereliction in the discharge of his official duties. He was not charged on the grounds of strictures of the Court as there was none.
8.3 On a careful reading of the judgment of learned MM, the allegations and the charge issued to him disclose that there is no stricture of the Court against him in the judgment and the Rule 13 has not been the basis of allegations and charges. Thus, we conclude that the contention 2 is correct position and find that this contention has no relevance to the disciplinary case against the Applicant.
9. Contention-3 :- The enquiry officer has exceeded his brief by acting as a prosecutor with a biased attitude to elicit answers to leading questions by cross examining the witnesses without giving opportunity to the applicant to re-cross examine them thereafter.
9.1 In support of the above contention, Shri Singal drew our attention to the questions put by the EO to 2 PWs and 1 DW to state that the nature of question was leading ones. He submits that the questions were not clarificatory but cross examination of the Prosecution and Defence Witnesses. The Applicant and his Defence Assistant did not have chance to cross examine those witnesses after the EOs questioning. The information sought by the EO disclosed that EO was assisting prosecution. He placed his reliance on the judgment of Honble High Court of Delhi in the case of Commissioner of Police and Others versus Bikram Singh [WP(C) No.3466/2010 decided on 16.07.2010} to state that the conduct of the EO caused a serious prejudice to the case of the Applicant as EO has no right to cross examine the witnesses without permitting the Applicant.
9.2 The Counsel for the Respondents would submit that the EO is entitled to ask clarificatory questions to elicit information from the witnesses which may in their knowledge. The EO did not act as Prosecutor and put questions to seek certain clarifications. EO did not cross examine the witnesses.
9.3 It is noticed from the EOs report that he has put court questions to PW1, PW2 and DW1. It is well established position in law that the EO has the power to ask clarificatory questions but is not entitled to cross examine any witness. We have scanned through the Report of the EO and found that he sought answer to number of questions from PW1, PW2 and DW1. For the sake of reference, the Court questions so asked by the EO and replies received from the witnesses are reproduced hereunder:-
PW1 COURT QUESTION Q.No.1. Who I.O. had recorded your statement on 10.5.98?
Ans. I dont remember. He was S.I. and had come from P.S. Tuglak Road.
Q.No.2 The statement which had been given on 10.5.98 by you to I.O. on which No. of Maruti Van was written DL-6CD-3224.
Ans. Yes.
Q.No.3 In the same statement you said that Maruti Van hit Ct. Rohtash and he fall down and his head struck against the ground.
Ans. It is right.
Q.No.4 Is it right that you knew this fact very well and had told the name of Ct. Rohtash to I.O. and now you are deliberately saying that you did not know the name of person who was hit by Maruti Van?
Ans. I came to know the name of Ct. Rohtash by staff who had come from inside E-Block, after he was hit.
Q.No.5 Then now, why are you taking the name of one person instead of Ct. Rohtash?
Ans. I have no reply to this question.
Q.No.6 The statement that had been given by you to I.O. on 10.5.98 therein you got written that accident happened in front of your eye during your duty and driver of Maruti Van was driving the Maruti Van fast, carelessly and negligence due to which accident occurred.
Ans. It is right.
Q.No.7 The statement, which had been given by you to I.O. on 11.5.98 therein you, got written that when after committing the accident driver Sikh of Maruti Van ran towards Vijay Chowk, Ct. Brijbeer who was posted in your unit and was on duty, stopped the said Maruti Van and thereafter Ct. Rohtash was rushed to RML Hospital in the same Maruti Van and the same sikh driver was driving the M/Van which is marked as Ex.PW-1/B. Ans. It is right.
Q.No.8 What did you do on 10.5.98 after accident?
Ans. I made noise Stop, Stop. Route staff of PM and some staff came from inside they all stopped the Maruti Van.
Q.No.9 How far away Maruti Van was stopped from the point where it hit Ct. Rohtash?
Ans. 20/25 step away.
Q.No.10. After stopping Maruti Van, the same was brought there where Ct. Rohtash was lying injured.
Ans. It is right.
Q.No.11 How far away was the point from your duty point where M/Van hit Ct. Rohtash?
Ans. 3 step away exactly in front of Gate.
Q.No.12 When Maruti Van was brought there after it hit Ct. Rohtash and he got injured who was sent with him?
Ans. Ct. Brijbeer was sent, who is present here and I recognize him.
Q.No.13 Is it right that driver of Maruti Van Sikh who hit Ct. Rohtash and the Maruti Van which was stopped and brought and in which Ct. Rohtash was sent to R.M.L. Hospital with Ct. Brijbeer was the same Driver?
Ans. It is right. PW2 COURT QUESTION Q.No.1 Whether Maruti Van No.DL-6CD-3224 from which accident happened was produced by Ct. Brijbeer?
Ans. Yes.
Q.No.2 Whether you got Ct. Brijbeer signed on the seizure memo of above Maruti Van?
Ans. No, because Ct. Brijbeer told me that it is very necessary for him to reach hospital and he is going there.
Q.No.3 Whether had you prepared personal search of accused Charanjeet Singh?
Ans. Yes.
Q.No.4 Whether you got Ct. Brijbeer signed on personal search of accused Chararnjeet Singh?
Ans. No. Q.No.5 It is very necessary to present eyewitness for TIP. Without eyewitness TIP could not be conducted. Is it right?
Ans. Yes.
Q.No.6 As you told during cross-examination by defence assistant that Ct. Yogesh and Ct. Brijbeer both were eyewitnesses than why did you not get TIP conducted of driver of Maruti Van?
Ans. As Ct. Brijbeer had caught driver of Maruti Van and Maruti Van on the spot that is why I did not conduct TIP. DW1 COURT QUESTION Q. No.1 What was your Belt No., when you were in 6th Bn. DAP/ Ans. Belt No. is not remember to me at this time.
Q.No.2 Who was Duty Officer on the night of 10/11.5.98?
Ans. The name of Duty Officer is not remember to me at this time.
Q.No.3 What was your duty on the night of 1/11.5.98?
Ans. My duty was in Night Reserve.
Q.No.4 Who were present there when Duty Officer told Ct. Brijbeer that an accident occurred outside on road?
Ans. I did not know.
Q.No.5 Was the road on which accident occurred in view of Duty Officer where he was sitting in D.O. Room?
Ans. No. It is trite law that EO does have a right to put clarificatory questions as he cannot be a silent spectator. As a neutral person he has to get the information not received in the examination and cross examination from the witnesses through appropriate questions. The questions are to clarify certain doubts which may be continuing in the EOs mind at that time of the enquiry. There is razor thin difference that distinguishes clarificatory questions from cross examining questions. In the present case, we have carefully read the questions asked to PW1, PW2 and DW1 by the EO. We do not find the questions to be in the nature of cross examination. Therefore, further opportunity to the Applicant or his Defence Assistant to seek clarification from those witnesses by examining them would not have arisen. Further, if the Applicant considered the Court question as cross examination, he could have raised the issue before EO, Disciplinary and Appellate Authorities, which he did not do so. However, on careful reading of the aid questions and answers, we find that the questions asked by the EO are clarificatory in nature.
10. Contention-4 :- The findings of the enquiry officer are based on no evidence and the disciplinary authority has not considered the representation/defence of the applicant.
10.1 Shri Anil Singal would contend that as the Section 161 CrPC statement of the Applicant was the basis for initiating the departmental proceeding against the Applicant, the said evidence alone being not admissible in the departmental proceedings as that is not a signed statement of the Applicant, there was no evidence in the case against him. Section 161 CrPC statement was the statement recorded during the police investigation and the Applicants statement before the learned Metropolitan Magistrate is the only admissible evidence and, as such, the DE has not brought out any evidence on the charges against the Applicant. Further, the Defence Statements and representation given by the Applicant has not been properly looked into by the Disciplinary Authority, as a result of which, prejudice has been caused to the Applicant. He, therefore, submits that on this ground also, the OA should be allowed.
10.2 On the contrary, Shri Chandramani Bhardwaj submits that there are evidences in the DE conducted by the Enquiry Officer from the witnesses examined then and, as such, to say that it is a case of no evidence is rather far from truth. Further, the Defence Statement furnished by the applicant pursuant to the Enquiry Officers report supplied to him by the Disciplinary Authority, the same has been taken into account and examined and appropriate order has been passed by the Disciplinary Authority.
10.3 On a close scrutiny of the DE Report, we find that PW1, PW2 and PW3 have tendered evidences which have been properly appreciated by the EO. The variation in the statement given by the Applicant under Section 161 CrPC has been properly authenticated by the author namely, the PW2 before the Enquiry officer in the DE. The level of evidence required in criminal case is not applicable in the departmental enquiry. Guiding principle in the departmental proceeding being probability of preponderance, we find there is adequate evidence against the applicant in the Enquiry Officers Report and, therefore, we do not accept the above contention of the Applicant to allow the OA. Further, in respect of inadequate examination and appreciation of Applicants representation and defence statement by the Disciplinary Authority, we would leave this aspect to be examined by the Appellate Authority as his appeal has such a mention.
11. Contention-5 :- Even the appellate authority has not applied its mind and mechanically endorsed the reasoning given by the disciplinary authority in a non-speaking and cryptic order.
11.1 The counsel for the Applicant would contend that the Applicant raised in his appeal (Annexure-A7) many grounds and some of those grounds even in the personal hearing, but the Appellate Authority without analyzing each of the grounds and giving his specific finding on each of those grounds, in a cryptic, non-reasoned and non-speaking order rejected the appeal.
11.2 On the other hand, Shri Bhardwaj submits that the Appellate Authority has gone through the appeal, heard the Applicant in person, perused the relevant records and concluded that he did not find any ground to justify his interference in the order of the Disciplinary Authority. It is, therefore, contended that rejection of the appeal is justified. He states that there is no need for the Appellate Authority to give a detailed and repetitive order as the Disciplinary Authoritys order is speaking and reasoned one.
11.3 As the order of the Appellate Authority is the matter of controversy, we reproduce below the relevant part of the order :-
This is an order in the appeal filed by Const. Brijbeer No.840/NE (here-in-after called the appellant) against he punishment of forfeiture of three years approved service permanently entailing proportionate reduction in pay awarded to him by Addl. DCP/North-East District vide order No.5297-5312/BAP/NE(P-II), dated 14.6.2005.
The facts of the case are that while the appellant was posted in DAP Lines and temporarily attached with Security Unit, on 10.05.98 at about 8.30 p.m. Maruti Van bearing No. DL-6C-D-3224 was being driven by one Charanjeet Singh r/o 132, H-3, Antriksh Apartment, Vikas Puri, New Delhi in a rash and negligent manner so as to endanger human life and personal safety of others at E-Block Security Line, New Delhi and struck Const. Rohtash Singh who was standing at the gate. The appellant had seen the accident and stopped Maruti Van No.DL-6C-D-3223 and taken the injured Const. to R.M.L. Hospital in the same Maruti Van and produced Charanjeet Singh alongwith vehicle to SI Subhash. During trial, the appellant did not support his earlier statement recorded u/s 161 Cr. P.C. in case FIR No.116/98 u/s 279/337/304-A IPC. The appellant being a material witness did not identify the accused and the accused was acquitted by the court by giving benefit of doubt. For the misconduct, a DE was conducted against him vide No.79-93/HAP/NE (P-II), dated 4.1.2005 in which the EO proved the charge beyond any shadow of doubt. The disciplinary authority after going through the file records and hearing in O.R. awarded him the punishment now appealed against.
Following the appeal, I have heard the appellant in person, I have gone through all the relevant facts and circumstances of the case and have also perused the relevant records. The appellant has not been able to bring forth any ground to justify interfering with the orders of the disciplinary authority. Therefore, the appeal is rejected. In order to assess whether the above order is a speaking and reasoned one, we perused the appeal available at Annexure-A7 of the paper book. Applicant in a 6 page appeal has given facts of the case and thereafter grounds in the form of humble submissions in 14 paragraphs. Appellate Authority is quasi judicial authorities and while exercising such powers, he is legally duty bound to analyse the grounds taken by the Applicant in his support and while passing order must give reasons for the conclusions arrived. The subjective satisfaction of the authorities must be based on objective analysis. It is trite that the punitive order being a quasi-judicial order and the authority passing such an order exercises quasi-judicial powers. Such an order is subject to the subjective satisfaction of the concerned authority but the said satisfaction must be based on objective analysis without being biased or prejudiced or influenced by any other factors. In the present case, the order on appeal shows non application of mind and does not show any analysis on the grounds of the Applicants plea in his appeal. Nor there is any analysis on the proportionality of punishment vis-a-vis the proved mis-conduct. Reasons to reject the appeal of the Applicant have not been reflected in the order. As observed by the Honourable Apex Court in Jagtamba Devi Versus Hem Ram and Ors. [2008-3-SCC-509] Reasons are live links between the mind of the decision taker to the controversy in question and the decision arrived at. Reasons substitute subjectivity by objectivity. Tested on the touch stone of above dicta, we find the order passed by the Appellate Authority is a non speaking and non reasoned order. Thus, we are of the considered opinion that there is legal infirmity in passing such cryptic order by the Appellate Authority. Having gone through the impugned order, in our considered view, the same cannot stand to logic for the reasons that in the appeal the Applicant had raised several points in the support of the claims but without examining any of the issues canvassed, the Appellate Authority by non-speaking and non-reasoned order, rejected the appeal. In our view, this is not the way a quasi-judicial proceeding is to be decided. The duty of the Appellate Authority is to give reasons for coming to a decisive decision. The satisfactory reasons are required from the point of view of the Applicant since the power exercised in the case has affected him. The Honourable Supreme Court in the case of Raj Kishore Jha versus State of Bihar and Ors. [(2003) 11 SCC 519] reiterated in Ram Phal Vs. State of Haryana [2009-3-SCC-258] decided on 6.2.2009 has stated:
Reason is the heartbeat of every conclusion. Without the same, it becomes lifeless. Considering from the above point of view, we come to the considered conclusion that the Applicant succeeds and the Appellate Authoritys order is liable to be quashed. We order accordingly.
12. Contention-6 :- The allegations against the applicant do not attribute any motive to him because of which it was incorrect for the disciplinary authority to hold that if he failed to identify the accused in the court, it means that he did it intentionally.
12.1 Referring to the charge framed against the Applicant, Shri Singal, learned counsel would contend that the misconduct had been identified as gross negligence, carelessness and dereliction in the discharge of the official duties but the charge so framed did not link to any motive behind the Applicants failure to identify the accused in the Court. The Disciplinary Authority, it is contended, has termed the said action on the part of the Applicant as intentional. Shri Singal would submit that the conclusion arrived at by the Disciplinary Authority in the above manner is contrary to the charge and hence the punishment being bad in law deserves to be quashed.
12.2 Refuting the above contention, the learned counsel would submit that the Applicant should not forget his basic duties in the court of Law. By not recognizing the accused, he brought discredit to Delhi Police. It is further stated that the Disciplinary Authority has considered the evidence gathered in the enquiry and Applicants representation and defence to state that the misconduct of failure to recognise the accused is intentional and there is no need to link any other motive which is not revealed from the enquiry.
12.3 The Applicant did not support his Section 161 Cr.P.C. statement before the Trial Court. Though the Charge against the Applicant is that it is carelessness and intentional, there is no evidence about his motive for doing so. The absence of any motive, in our considered opinion, does not vitiate the disciplinary proceeding against the Applicant.
13. In the foregoing paragraphs, we have considered six contentions which were not considered earlier by this Tribunal in the said OA in the orders passed on 6.03.2007 and subsequently on 29.07.2009. After a detailed analysis of the contentions, we come to the considered conclusion that the orders of the Appellate Authority suffers from non-application of mind by not considering the grounds taken by the Applicant in his appeal. Further, the summary rejection of the appeal by the Appellate Authority is a non-speaking and non-reasoned order. In view of the reasons given by us in the paragraphs within, we come to the considered conclusion that the Appellate Authoritys order dated 23.02.2006 (Annexure-A4) is quashed and set aside. The disciplinary case is remanded back to the Appellate Authority to consider the Applicants appeal on the grounds taken by him along with the proportionality angle of the punishment imposed by the Disciplinary Authority against the proved misconduct. We make it clear in this order that we have not gone into the merits of the grounds taken by the Applicant in his appeal and, therefore, keeping in view of our observations within, the Appellate Authority is directed to decide the appeal of the Applicant within a period of 9 weeks from the date of receipt of a certified copy of this order.
14. In terms of the above directions and observations, the OA is disposed of. There is no order as to costs.
(Dr. Dharam Paul Sharma) (Dr. Ramesh Chandra Panda) Member (J) Member (A) /pj/